Citation Nr: 0313053
Decision Date: 06/17/03 Archive Date: 06/24/03
DOCKET NO. 97-27 915 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
spina bifida occulta at S-1, with low back strain.
2. Entitlement to a total disability rating for compensation
purposes on the basis of individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Johnson, Counsel
INTRODUCTION
The veteran served on active duty from April 1979 to December
1984, with prior active service of two years, two months, and
twenty-three days.
The current appeal came to the Board of Veterans' Appeals
(Board) from a March 1996 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in No. Little
Rock, Arkansas. The RO denied entitlement to an evaluation
in excess of 10 percent for spina bifida occulta at S-1 with
low back strain, and a TDIU.
The veteran presented testimony before a Hearing Officer at
the RO in November 1997, and before the undersigned Veterans
Law Judge at the RO in October 1999. Transcripts of the
hearings have been associated with the claims file.
In February 2000, the Board remanded the claims to the RO for
further development and adjudicative action.
In August 2002 the RO most recently affirmed the
determination previously entered.
The case has been returned to the Board for further appellate
review.
REMAND
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (CAVC) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101
(West 2002) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the CAVC. See
M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Regulations have recently been promulgated that give the
Board the discretion to perform internal development in lieu
of remanding the case to the agency of original jurisdiction.
See 38 C.F.R. § 19.9 (2002).
There are still actions, however, that must be accomplished
at the RO level because the required action takes place there
or because current law requires it. One such circumstance is
where the agency of original jurisdiction has performed
little or no development.
The CAVC has held that section 5103(a), as amended by the
Veterans Claims Assistance Act of 2000 (VCAA) and 38 C.F.R.
§ 3.159(b), as recently amended, require VA to inform a
claimant of which evidence VA will provide and which evidence
the claimant is to provide, and remanding where VA failed to
do so. See Quartuccio v. Principi, 16 Vet. App. 183 (2002);
see also 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107
(West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2002).
As stated, the Board remanded this case to the RO in February
2000 for further development and adjudicative action. In
November 2000, the VCAA was signed into law.
Following the requested development, the RO issued a
supplemental statement of the case in August 2002, which did
not include information concerning the VCAA.
The RO's failure to issue a development letter consistent
with the notice requirements of the VCAA, particularly for an
appeal that has been pending well after the enactment of the
VCAA, amounts to a substantial oversight indicative of
minimal RO development and accordingly compels remand.
The Board observes that additional due process requirements
may be applied as a result of the enactment of the VCAA and
its implementing regulations. See 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A and 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a).
Accordingly, this case is remanded for the following:
1. The appellant has the right to submit
additional evidence and argument on the
matter or matters the Board has remanded
to the RO. Kutscherousky v. West, 12
Vet. App. 369 (1999).
2. The RO should furnish the appellant a
development letter consistent with the
notice requirements of the VCAA, as
clarified by Quartuccio, supra.
3. The RO should then conduct any
necessary development brought about by
the appellant's response and issue a
supplemental statement of the case, if
necessary.
Thereafter, the case should be returned to the Board for
appellate review, if otherwise in order. By this remand, the
Board intimates no opinion as to any final outcome warranted.
No action is required of the appellant until he is notified
by the RO.
_________________________________________________
RONALD R. BOSCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the CAVC. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).